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Thomas Y. Davies, Selective Originalism: Sorting Out Which Aspects of Giles’s Forfeiture Exception To Confrontation Were or Were Not “Established at the Time of the Founding” , 13 Lewis & Clark Law Review 605 (2009)

In Giles v. California (2008), as previously in Crawford v. Washington (2004), Justice Scalia’s majority opinion purported to follow the Framers’ design for the Confrontation Clause. Giles did comport with the framing-era right insofar as it limited the forfeiture exception to confrontation to instances in which a criminal defendant had engaged in deliberate witness-tampering (although the opinions in Giles endorsed a loose notion of deliberateness). However, a review of the history of the confrontation right and forfeiture reveals that Giles departed from the common-law right in fundamental ways. In framing-era law, forfeiture applied only to the sworn testimony that a witness who was kept away from trial by the defendant had previously given under the Marian statutes. Moreover, only the sworn and confronted prior testimony of an unavailable witness was admissible under forfeiture during the nineteenth century and most of the twentieth century. Unsworn and unconfronted hearsay statements of the sort at issue in Giles were never admissible under forfeiture until the latter part of the twentieth century-and then were allowed under the reliability formulation of confrontation that Crawford rejected as a totally inadequate formulation of the right. Thus, a genuine originalist analysis would have undermined the constitutionality of current Federal Rule of Evidence 804(b)(6).

Additionally, all of the opinions in Giles persisted in endorsing Crawford’s completely fictional claim that the original confrontation right regulated only “testimonial” hearsay, but did not apply at all to “nontestimonial” hearsay-notwithstanding that Justice Scalia made several assertions in Giles that undercut that pretended distinction. For example, he acknowledged that the general ban against hearsay arose from the same roots as the confrontation right itself. Nevertheless, dicta in Giles indicates that the justices intend to narrowly confine “testimonial” hearsay, and thus the confrontation right itself, to only those hearsay statements made to government officers, but to exempt all other hearsay as “nontestimonial,” including even statements made to physicians or nurses involved in gathering evidence for domestic violence prosecutions. In sum, the purported originalism in Giles was so selective it did not amount to originalism at all.

(abstract from Lewis & Clark Law Review)